April 27 he proclaimed a blockade of the ports of Virginia and North Carolina. "It would seem, then, that if the British Government erred in thinking that the war began as early as Mr. Lincoln's proclamation in question, they erred in company with our Supreme Court. (See the 'Alabama question,' New Englander for July, 1869; Black's Reports, ii, 635 ff.; Dana on Wheaton, 374, 375; Lawrence's Wheaton (2d ed., supplem.), p. 13; and Pomeroy's Introd. to Constit. Law, §§ 447-453.)” ( (Woolsey, Int. Law, app. iii, note 19.) In the Prize Cases it was "simply held, that when parties in rebellion had occupied and held in a hostile manner a portion of the territory of the country, declared their independence, cast off their allegiance, organized armies, and commenced hostilities against the Government of the United States, war existed; that the President was bound to recognize the fact, and meet it without waiting for the action of Congress; that it was for him to determine what degree of force the crisis demanded, and whether the hostile forces were of such magnitude as to require him to accord to them the character of belligerents; and that he had the right to institute a blockade of ports in their possession, which neutrals were bound to recognize. It was also held, that as the rebellious parties had formed a confederacy, and thus become an organized body, and the territory occupied by them was defined, and the President had conceded to this organization in its military character belligerent rights, all the territory must be regarded as enemy's territory, and its inhabitants as enemies, whose property on the high seas would be lawful subjects of capture. There is nothing in these doctrines which justified the Confederate States in claiming the status of foreign States during the war, or in treating the inhabitants of the loyal States as alien enemies." Williams v. Bruffy (1877), 96 U. S. 176, 189. "To the Confederate Government was conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged, under the law of nations, to the armies of independent Governments engaged in war against each other. The Confederate States were belligerents in the sense attached to that word by the law of nations." Harlan, J., Ford v. Surget, 97 U. S. 594. "It has been held by this court in repeated instances that, though the late war was not between independent nations, yet, as it was between the people of different sections of the country, and the insurgents were so thoroughly organized and formidable as to necessitate their recognition as belligerents, the usual incidents of a war between independent nations ensued. The rules of war, as recognized by the public law of civilized nations, became applicable to the contending forces. Their adoption was seen in the exchange of prisoners, the release of officers on parole, the recognition of flags of truce, and other arrangements designed to mitigate the rigors of warfare. The inhabitants of the Confederate States on the one hand, and the States which adhered to the Union on the other, became enemies, and subject to be treated as such, without regard to their individual opinions or dispositions; while during its continuance commercial intercourse between them was forbidden, contracts between them were suspended, and the courts of each were closed to the citizens of the other. Brown v. Hiatts, 15 Wall. 177, 184." United States v. Pacific Railroad, 120 U. S. 227, 233 (1887). "The rights and obligations of a belligerent were conceded to it [the Confederate Government], in its military character, very soon after the war began, from motives of humanity and expediency by the United States." Thorington v. Smith, 8 Wall. 1, quoted in Baldy r. Hunter, 171 U. S. 388, 393 (1898). Position of Mr. "The President recognizes the right of every power, when a civil conflict has arisen within another state, and has attained a sufficient complexity, magnitude, and completeness, to define its own relations and those of its citizens and subjects toward the parties to the conflict, so far as their rights and interests are necessarily affected by the conflict. "The necessity and the propriety of the original concession of belligerency by Great Britain at the time it was made have been contested and are not admitted. They certainly are questionable, but the President regards that concession as a part of the case only so far as it shows the beginning and the animus of that course of conduct which resulted so disastrously to the United States. It is important, in that it foreshadows subsequent events. "There were other powers that were contemporaneous with England in similar concession, but it was in England only that the concession was supplemented by acts causing direct damage to the United States. The President is careful to make this discrimination, because he is anxious as much as possible to simplify the case and to bring into view these subsequent acts, which are so important in determining the question between the two countries." Mr. Fish, Sec. of State, to Mr. Motley, minister to England, May 15, 1869, in relation to the Alabama claims. (S. Ex. Doc. 11, 41 Cong. 3 Sess. 4-5.) Mr. Motley was also instructed, in his private as well as his official intercourse, "to place the cause of grievance against Great Britain, not so much upon her recognition of the insurgents' state of war, but upon her conduct under and subsequent to such recognition." See Moore, International Arbitrations, I. 499, 512 et seq. Mr. Fish, in an instruction to Mr. Motley, Sept. 25, 1869, amplified his view, as follows: "The President does not deny, on the contrary he maintains, that every sovereign power decides for itself, on its responsibility, the question whether or not it will, at a given time, accord the status of belligerency to the insurgent subjects of another power, as also the larger question of the independence of such subjects and their accession to the family of sovereign states. "But the rightfulness of such an act depends on the occasion and the circum- Insurrection of 1868. 9. CUBA. "I have the honor, by the President's direction, to offer a few suggestions as a basis for orders to the Commander of the North Atlantic Squadron during the existing civil war in Cuba. Those hostilities must be regarded as strictly of a domestic character. As such they can not impart to Spain, under the public law or our treaties with her, any belligerent rights on the high seas, nor have we recognized such rights anywhere as possessed by those who are in arms against Spanish authority in that island. The right of search for contraband is a right to be exercised against a public enemy only on the high seas. It can not there lawfully be exercised against a neutral who has not recognized both parties as belligerents. If, therefore, the commander of our men-ofwar should ascertain that a vessel of the United States is about to be searched on the high seas by a Spanish vessel they may be authorized to resist such search with all the force at their disposal. If, also, they should fall in with a vessel of the United States which has been captured by a Spaniard on the high seas on the ground of being a carrier of contraband, or on any other pretext involving a claim to belligerent rights in that quarter, they may be authorized to recapture the prize if they should feel competent for that purpose. * * * It is presumed to be unnecessary to suggest that the naval commanders should be ordered to be careful as to facts, to be firm and vigilant in protecting their countrymen, but at the same time avoid giving occasion for unnecessary or unprofitable controversy with Spain by touching upon her unquestionable rights." Mr. Fish, Sec. of State, to Mr. Borie, Sec. of the Navy, May 18, 1869, 81 MS. H. Doc. 551-13 "I am requested by the Secretary to say to you that he has been told that the counsel of the Hornet' will probably insist upon and try to make much of the recognition of Cuba by Peru, Chile, and Mexico, and will claim that the United States have offered their 'mediation' in behalf of the Cubans, which by the public law can only be offered as between recognized belligerents. The Secretary desires me to say to you in answer to this: "1st. That we have no intelligence that Chile has acted at all in this matter. "2d. That Mexico has not recognized a state of belligerency, but has authorized the Cuban flag to be received in their ports. "3d. That it is not true that the United States have offered to mediate between the parties. They have only offered to Spain their ‘good offices' to bring about a settlement which is a very different thing, and one that may well be done by a neutral between a sovereign power and insurgents in arms against it. "4th. That the light in which the Cubans are regarded can in no event make any difference on an arraignment for an alleged violation of the provisions of the statutes of 1818." Mr. J. C. B. Davis, Assistant Secretary, to Mr. Phelps, U. S. Dist. Att'y, New "The contest [in Cuba] has at no time assumed the conditions which amount to a war in the sense of international law, or which would show the existence of a de facto political organization of the insurgents sufficient to justify President Grant's a recognition of belligerency. "The principle is maintained, however, that this nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive, or to independent nations at war with each other." President Grant, First Annual Message, Dec. 6, 1869. See, as to the position of President Grant and Mr. Fish on the question of recognizing Cuban belligerency, J. C. Bancroft Davis, Mr. Fish and the Alabama Claims, 20-21, 35-36; The Atlantic Monthly, February, 1894, 217-218. Special message, June 13, 1870. "The question of belligerency is one of fact not to be decided by sympathies for or prejudices against either party. The relations between the parent state and the insurgents must amount, in fact, to war in the sense of interna tional law. Fighting, though fierce and protracted, does not alone constitute war; there must be military forces acting in accordance with the rules and customs of war--flags of truce, cartels, exchange of prisoners, &c. and to justify a recognition of belligerency there must be, above all, a de facto political organization of the insurgents suffi cient in character and resources to constitute it, if left to itself, a state among nations capable of discharging the duties of a state, and of meeting the just responsibilities it may incur as such toward other powers in the discharge of its national duties. "Applying the best information which I have been enabled to gather, whether from official or unofficial sources, including the very exaggerated statements which each party gives to all that may prejudice the opposite or give credit to its own side of the question, I am unable to see, in the present condition of the contest in Cuba, those elements which are requisite to constitute war in the sense of international law. The insurgents hold no town or city; have no established seat of government; they have no prize courts; no organization for the receiv ing and collecting of revenue; no seaport to which a prize may be carried or through which access can be had by a foreign power to the limited interior territory and mountain fastnesses which they occupy. The existence of a legislature representing any popular constituency is more than doubtful. "In the uncertainty that hangs around the entire insurrection there is no palpable evidence of an election, of any delegated authority, or of any government outside the limits of the camps occupied from day to day by the roving companies of insurgent troops. There is no commerce; no trade, either internal or foreign; no manufactures. "The late commander in chief of the insurgents, having recently come to the United States, publicly declared that 'all commercial intercourse or trade with the exterior world has been utterly cut off,' and he further added, "To-day we have not ten thousand arms in Cuba.' "It is a well-established principle of public law that a recognition by a foreign State of belligerent rights to insurgents under circumstances such as now exist in Cuba, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion. Such necessity may yet hereafter arrive, but it has not yet arrived, nor is its probability clearly to be seen. "If it be war between Spain and Cuba, and be so recognized, it is our duty to provide for the consequences which may ensue in the embarrassment to our commerce and the interference with our revenue. "If belligerency be recognized, the commercial marine of the United States becomes liable to search and to seizure by the commissioned cruisers of both parties-they become subject to the adjudication of prize courts. "Our large coastwise trade between the Atlantic and the Gulf States, and between both and the Isthmus of Panama and the States of South America (engaging the larger part of our commercial marine) passes, of necessity, almost in sight of the island of Cuba. Under the treaty with Spain of 1795, as well as by the law of nations, our vessels will be |